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Email from Dr.

Ibsen, April 23, 2018, outlining timeline of
investigations and sanctions, updated with June 2018 court
decision and 2016 brief:
Here’s the timeline,
And my Attorney, John Doubek can confirm these dates.

I fired an employee in January 2013 for being abusive to patients. In
February I received notice that the board of medicine wanted me to
appear before them at a screening panel hearing. This occurred in April
2013. There were multiple complaints filed against my license( by the
former employee). All of these were dismissed except one: an
accusation of over prescribing narcotics.

After meeting with the board of medicine screening panel, to my
surprise the case went forward.

After much negotiating the board offered me an ultimatum:
In order to settle the case, I had to agree to
•Stop seeing addicts ( thought that was never defined)
•Only treat pain for three days
•Stop prescribing medical marijuana
•Submit to the Montana professional assistance program for physicians
( implying, without evidence, that I am or was impaired)
I declined this absurd restriction on my practice,
(But now my clinic is closed, so Mr Fanning knew something I did not.)

In the meantime I was seeing more more pain patients as they were
dropped by their doctors. This resulted in a three-part series in the
local newspaper on chronic pain in May 2014.

http://helenair.com/news/local/big-pain-series/image_d19e3b34-df0b-
11e3-8c80-0019bb2963f4.html

There were 4 hearings about my license
October 21, 2014
https://www.google.com/amp/helenair.com/news/local/helena-doctor-
fights-to-save-his-medical-license/article_7b3c32b6-252e-59ab-b7ed-
e3aa97e0e449.amp.html

October 22,2014

1. PETITIONER’S BRIEF
https://www.google.com/amp/helenair.com/news/local/doctor-s-hearing-
put-on-hold-after-pharmacist-testifies/article_1612facc-f8d0-5ade-
9a25-3162f49fe285.amp.html

December 3 2014

https://www.google.com/amp/helenair.com/news/local/physician-s-
license-on-the-line-patients-say-he-s/article_35fc8017-71e4-5fc3-95cb-
cf6067dfdcb4.amp.html

December 4 2014

https://www.google.com/amp/missoulian.com/helena/news/local/how-
much-is-too-much-helena-doctor-s-drug-
prescriptions/article_ab33e0a2-80cf-582d-b1bc-
d7e5c44fcbe3.amp.html

https://www.google.com/amp/helenair.com/news/local/attorney-
questions-doctor-s-sanity-in-final-day-of-hearing/article_bfe4cc7f-ffa5-
5d01-b0fa-5a332ebb70a8.amp.html

June 2015
The Administrative law judge, David Scrimm
Ruled on the case

https://dli.mt.gov/Portals/57/OAHDecisions/poldec190_2014.pdf

https://www.google.com/amp/missoulian.com/helena/news/local/exami
ner-finds-ibsen-met-standards-of-patient-care-but-
kept/article_cd19b2ee-ba6d-5192-9a6c-d0981abd967e.amp.html

The board of medicine chose to reject the ruling
And
In a series of hearings proceeded to revoke
And reject the findings of the ALJ.

http://www.kpax.com/story/30270669/ibsen-license-question-could-be-
settled-in-november

After hearings in November
December, 2015, and January 2016,

2. PETITIONER’S BRIEF
My license was suspended
March 2016.

Judge Reynolds immediately applied a Temporary Restraining Order,
So my license was restored with 36 hours.

https://www.google.com/amp/www.ktvh.com/2016/10/helena-doctor-
continues-fight-montana-board-medical-examiners/amp

June 2018 Update: Judge reverses decision of Montana licensing
board, remands case back to the licensing board for possible further
investigation.
I currently have my license under the temporary restraining order.
Judge Reynolds has yet to make his permanent ruling, 25 months since
the temporary restraining order was established.

The last hearing he had was 10/31/16.

While I have no idea why it’s taking him so long to make a permanent
ruling, my attorneys advice has been to “let sleeping dogs lie“ rather
than take the case to the Supreme Court risking an adverse ruling
against my license.

Parenthetically, it’s interesting that a case so simple on only nine
patients could result in years of hearings, hundreds of thousands of
dollars spent by me and millions of dollars spent by the state. The case
could’ve been resolved in a 10 minute conversation. It’s clear to me
that the board of medicine in the state attorney generals office was
only interested in finding a scapegoat. This case in the case of Dr.
Christianson [convicted of murdering two patients through reckless
prescribing] of course have cast a pall over opiate prescribing in our
state. The other unfortunate and vexing thing for me is that I
apparently cannot sue for damages because my case has never been
fully resolved.

Mr. Fanning, the board of medicine attorney, impugned my character
my mental health status
and the care I’ve given to my patients. He has yet to be found
accountable.

Thanks

3. PETITIONER’S BRIEF
Mark Ibsen MD.
Helena Mt.

PS:
This timeline does not include five different meetings with the Dragon
Forssman agency who came to my office inspected my practice, and
insisted on my attorney being present for these meetings.

June 2018 Update: Judge reverses decision of Montana licensing
board, remands case back to the licensing board for possible further
investigation.

Filed before 10/31/2016
John C. Doubek
DOUBEK, PYFER & FOX, LLP
307 North Jackson
P.O. Box 236
Helena, MT 59624
Telephone: (406) 442-7830
Facsimile: (406) 442-7839

Attorney for Petitioner

MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY

******

MARK IBSEN, M.D., ) Cause No. DDV-2016-283
)
Petitioner, )
) PETITIONER’S BRIEF
vs. )
)
MONTANA STATE BOARD OF )
MEDICAL EXAMINERS, )
)
Respondent. )

4. PETITIONER’S BRIEF
Petitioner respectfully submits this brief in support of his Petition to reverse the

decision of the Montana Board of Medical Examiners.

CASE ORIGIN

Oftentimes cases involving the review of a decision of the Board of Medical

Examiners as it relates to physician discipline arise as a result of some particular bad act

committed by the physician. It may arise from a referral or transgression against

Medicare or Medicaid. It may arise as a result of grossly deficient medical care. It may

arise because of an injury to a patient. It may arise as a result of a physician’s addiction

to alcohol or drugs. None of that was present here. Instead, this case started when one of

Dr. Ibsen’s employees filed a complaint against him upon being terminated from her job

at Dr. Ibsen’s Urgent Care Plus clinic. This terminated employee is named Sarah Damm.

She was a chiropractor but worked as an office staff aide in Dr. Ibsen’s clinic. She had

difficulty getting along with her co-workers. She spoke derogatorily about patients in

front of others. She had a difficult time obeying orders. Dr. Ibsen tried to find her some

office space so she could simply work as a chiropractor. That didn’t work out and so he

terminated her. In retaliation for the termination, this employee filed a complaint with the

Montana Board of Medical Examiners asserting that Dr. Ibsen had overprescribed

narcotics for a number of patients and identified 9 patients specifically to the Board of

Medical Examiners.

The Board of Medical Examiners determined to proceed and have a hearing on

the matter. Shortly before the hearing began the Board’s attorney offered to resolve the

complaint against Dr. Ibsen if he would simply acknowledge that his record keeping

5. PETITIONER’S BRIEF
could be better. Dr. Ibsen would not so agree and the matter went to a hearing which

lasted some 4 days. Many witnesses were called, some 2700 of pages of patient record

were submitted and a decision of an attorney Hearing Examiner named David Scrimm

followed.

The Board of Medical Examiner’s counsel did not like that decision and asked the

Board to reverse it in a number of respects. Ultimately the Board did as its Board counsel

wished and entered another order and it is that order from which Dr. Ibsen appeals.

Before the Board adopted its final decision and order (Exhibit A) it had two

deliberation meetings as to why and how the decision ought to be changed. The Board

deliberated “on the record” announcing what it was thinking, why it was thinking about

certain changes, etc. and then it had another work session which lasted several hours and

during that time again discussed its decision and what all was going into its decision.

That process of deliberation is fraught was error. The Board tipped its hand that it was

considering a number of things which were not in the evidentiary record.

THE FINAL ORDER

This final order by the Board is fraught with mistakes, many of which are just

plain garden variety mistakes by the Board. This brief will go through the final order as

it is set forth.

The Board states at page 2 that it was rejecting the Hearing Officer’s proposed

order because “certain findings of fact are not based on substantial competent evidence”

and the Board disagreed with some of the proposed conclusions of law drawn from the

ill-founded findings of fact. In actuality, the findings of the Hearing Officer as contained

6. PETITIONER’S BRIEF
in his proposed order (Exhibit B) were largely based upon competent, relevant and

substantial evidence but the Board didn’t like what the Hearing Officer had found and

willy nilly threw out what they wanted and simply stated that his findings were not based

upon substantial competent evidence. The transcript of the “deliberations” process shows

the Board was constantly coached by its counsel to use certain words if they wanted to

reject something in the Hearing Officer’s proposed order. Indeed, the Board’s counsel

gave the Board a handout telling them what words needed to be used to do the job.

It should also be noted that as per Mont. Code Ann. § 2-4-623(1)(a), a final

decision of an agency “must be issued within 90 days after a contested case is considered

to be submitted for a final decision unless, for good cause shown, the parties extended for

an additional time not to exceed 30 days.” This case has dragged on and on and the final

decision was not made within 90 days after the contested case decision was submitted in

June, 2015. We would also point out that at the top of page 2 of its Order, the Board

states that the Hearing Officer heard this contested case on June 23, 2014 and October 21

and 22, 2014. That’s a mistake. Actually, the administrative trial occurred on October 21

and 22, 2014, and December 3 and 4, 2014. The Hearing Officer thereafter entered his

order on June 12, 2015, over six months later. The Board did not enter its final order

until March 22, 2016, nearly 9 months later. Meanwhile, Dr. Ibsen continued taking care

of his patients.

When discussing the standard for review, there are two references made by the

Board to Mont. Code Ann. § 2-4-623(3). That must be a typographical error because that

statute does not provide what the Board states at page 2. The reference should have been

7. PETITIONER’S BRIEF
made to Mont. Code Ann. § 2-4-621(3). Furthermore, the whole approach by the Board

is in error here. This is a case where a Hearing Examiner duly appointed by the Board of

Medical Examiners had an administrative trial, received evidence in testimony and

exhibits and then issued his opinion (Findings of Fact, Conclusions of Law and Proposed

Order). It then went to the Board of Medical Examiners and thus it would appear that the

Board is referring at the bottom of page 2 when discussing the standard of review to

Mont. Code Ann. § 2-4-621 which is the statute relative to when absent members may be

involved in the decision and modify a decision. That statute is likely applicable because

what happened here is that the Board of Medical Examiners did not hear the case itself

but thereafter purported to issue a final order (Exhibit A) (which Petitioner has appealed).

The statute though specifically provides that the Board’s decision, “if adverse to a party

to the proceeding other than the agency itself, may not be made until a proposal for

decision is served upon the parties and an opportunity is afforded to each party adversely

affected to file exceptions and present briefs and oral arguments to the officials who are

to render the decision.” That didn’t happen here. The Board gave the parties the

opportunity to contest the Hearing Examiner’s order but we were not given an

opportunity to contest by filing exceptions and briefs and have oral argument on the

decision itself of the Board of Medical Examiners, which is what the statute provides. In

other words, the Board of Medical Examiners issued its decision by virtue of a final order

dated March 22, 2016. The parties, including Dr. Ibsen, were never afforded the

opportunity to file exceptions or present briefs and oral argument about that decision. He

was left only to file his Petition for Judicial Review of the Agency’s final order. On this

8. PETITIONER’S BRIEF
basis alone, the “Final Order” of the Board of Medical Examiners needs to be reversed.

Again, Dr. Ibsen was never given the opportunity to file a brief and exceptions and

contest the various provisions of the Final Order. When the Final Order came out, that

was the first time it was seen by Dr. Ibsen. Mont. Code Ann. § 2-4-621 provides the

following:

When absent members render decision-proposal for decision and
opportunity to submit findings and conclusions - modification by agency.
(1) When in a contested case a majority of the officials of the agency who
are to render the final decision have not heard the case, the decision, if
adverse to a party to the proceeding other than the agency itself, may not
be made until a proposal for decision is served upon the parties and an
opportunity is afforded each party adversely affected to file exceptions and
present briefs and oral argument to the officials who are to render the
decision.

In this case, none of the members or officials of the Agency (Board of Medical

Examiners) heard or participated in the underlying administrative trial. That being the

case, its decision, whatever it might have been, needed to be first presented to the parties

if it was going to be adverse to one of the parties and certainly it was adverse to Dr. Ibsen

and Dr. Ibsen should have been given under the law the opportunity to file exceptions and

present briefs and oral argument to the same. That didn’t happen. That’s one of the many

reasons why the Final Order of the Board of Medical Examiners needs to be set aside for

failure to follow the law.

SPECIFIC ERRORS IN FINAL ORDER

At page 6 of its Final Order, the Board modifies the Finding of Fact 3 to delete

any comparison between standard of care and the fact that the pendulum concerning pain

treatment has indeed changed significantly over the years which, according to the Board’s

9. PETITIONER’S BRIEF
own witness, pharmacist Starla Blank, at Tr. 661, specifically stated that, “there really

was this big shift of the pendulum from, you know, pain and pain medicines being

reserved for either acute instances or in a chronic case just for like cancer pain, and that

really has shifted.” Tr. 661. All of the witnesses who testified in this case spoke about

their being a change in attitude and a change in treatment using narcotics to address pain.

Indeed, the pendulum shifted relative to the pain treatment using narcotics which greatly

increased. Thus, the standard of care changed as well. For a time narcotics were used

more so than they were used in other times. The standard of care changed as a matter of

fact and as admitted by the Board’s own witnesses, but the Board doesn’t want that to

appear in the Hearing Examiner’s Order. The Board stated that it was an inaccurate

statement of standard of care but there is no basis for that position being announced by

the Board. This is a hallmark of the Board’s Final Order, that is, if the Board didn’t like

something it would simply strike it from the Hearing Officer’s decision, not because it

was based upon non-record evidence or because it was clearly erroneous or because it

was based upon something other than substantial record evidence. The fact that all the

witnesses made reference to the fact that the use of opioids changed over time and thus

the standard of care changed over time is something that the Board has to recon with not

strike because it doesn’t like it. The Board must follow the law and cannot reject or

modify factual findings unless it first determines from a review of the entire record and

states with particularity that the findings were not based on competent substantial

evidence or were somehow not in compliance with legal requirements. Further, it cannot

10. PETITIONER’S BRIEF
increase any penalty without a complete record review. See, Mont. Code Ann. § 2-4-

621(3).

The Board committed error in the first paragraph on page 4 of the Final Order by

stating that unless there was contemporaneous documentation by Dr. Ibsen in the patient

records, it would not accept any of his testimony. This is flatly an unlawful and

unprecedented hurdle placed on his testimony by the Board. It says that the Hearing

Officer was wrong to administer Dr. Ibsen the oath to testify truthfully if he couldn’t also

corroborate his testimony by reference to the patient records for everything he had to say.

In so doing, the Board stripped the Hearing Examiner of his right and duty to attach the

amount of credibility he felt the testimony warranted. I frankly have never encountered

such a limitation placed on someone’s testimony or on the Hearing Examiner’s function

before. This approach permeates the Board’s decision as will be demonstrated hereafter.

One of the first times this can be shown is when the Board, without any basis,

changed the Hearing Officer’s Finding of Fact number 10. The Board struck all

testimony that Dr. Ibsen used the Montana Prescription Drug Registry (MPDR) because

his patients’ records, evidently it felt, did not contain copies of those MPDR records. The

Hearing Officer found from Dr. Ibsen’s testimony that he began using the MPDR in

February 2013, a couple months after it came on line. While copies of the MPDR may

not have been in each patient’s records, it was in use by Dr. Ibsen. That matter can be

verified as to when he signed up for it. He also produced copies of the MPDR for the

patients at issue here. See Exhibit M. There is thus no basis whatsoever for the Board to

strike Dr. Ibsen’s testimony that he and his office began to use the MPDR in February

11. PETITIONER’S BRIEF
2013. It was supported by his testimony and by the records (Exhibit M) in the evidence.

The MPDR is a separate record from the medical records of a particular patient. Dr.

Ibsen kept those separate.

The Board routinely in the Final Order would throw out what it did not like or

want in the Hearing Examiner’s decision. It did that indiscriminately. This approach

compels reversal. As the Montana Court held in Moran v. Shotgun Willies, 270 Mont.

47 (1995), if the Hearing Examiner’s findings are supported by the evidence, the rejection

or modification by the agency of such finding is an abuse of discretion and a clearly

unwarranted exercise discretion.

The Board next struck all of Finding of Fact 13. The Board did not like the

factual finding that “all of Dr. Ibsen’s prescriptions were for legitimate medical

purposes.” Indeed, Dr. Kneeland was asked the following and gave the following

response:

Q. You’re not here testifying that any prescribed pain medication was for
anything other than a legitimate medical reason or purpose?

A. No.

Indeed, Dr. Kneeland also acknowledged in his testimony that he was not

testifying that any of the 9 patients who received pain medication were not truly having

pain (Tr. 474). He was also not testifying that any of the 9 patients ever misused their

pain medications in any way (Tr. 474). He testified that there was no patient who had any

long term, bad outcome, because of any of the pain medications that had been prescribed

for them by Dr. Ibsen (Tr. 475). No one at the 4 day administrative trial testified that the

12. PETITIONER’S BRIEF
kind or amount of pain meds prescribed by Dr. Ibsen was inappropriate. No one testified

that Dr. Ibsen did not counsel with the patients about their use of medications and have an

agreement with them about getting the meds at one place using only Dr. Ibsen as their

prescriber. All of his patients trusted him implicitly. None of his patients were ever

abandoned by him. Incidentally, when the Board called Starla Blank, a pharmacist at St.

Peter’s Hospital to testify, she acknowledged that Dr. Ibsen used the PDR in Montana

shortly after it went live (Tr. 716) (contrary to the Board’s rejection in Finding of Fact

10). She agreed with others who testified. She was unaware of any case where Dr.

Ibsen’s prescriptions exceeded any manufacturers’ stated limits (Tr. 717-718). It’s plainly

a fact that the Board simply doesn’t want to admit what the evidence clearly shows,

which is that no patient of Dr. Ibsen’s ever received improper pain medications. There’s

no reason to throw out Finding of Fact 13. Such action is clearly erroneous and arbitrary

and capricious. Indeed it is a correct factual finding and the various references to the

transcript by the Hearing Officer should be affirmed.

The Board simply throws out Finding of Fact 15 because it states that the medical

records are somehow inadequate in the documentation of referrals to other healthcare

resources. This is an absurdity. Indeed the Hearing Examiner specifically states that the

Dr. Ibsen’s patient records indicate that he uses all of these other disciplines in his

practice (referring to Finding of Fact 14) which the Board accepted at page 8 of its Final

Order, that is, mental and behavioral health, psychology, psychiatry, counseling, physical

therapy, chiropractic, massage, interventional therapy, and other modalities. Indeed, three

of the patients who testified confirmed that Dr. Ibsen involved other modalities in their

13. PETITIONER’S BRIEF
care for their chronic pain. In the case of Patient number 4, he testified that Dr. Ibsen got

him involved with the Landmark Forum. Dr. Ibsen recommended chiropractic care

although the patient was afraid of that. He referred him to a psychiatrist who was a great

help to Patient number 4 according to Patient number 4. He testified that Dr. Ibsen gave

him literature to read concerning life issues and prescription medications (Tr. 526).

Patient number 4 basically credited Dr. Ibsen with saving his life and getting him off of

pain meds.

Patient number 3 talked about Dr. Ibsen getting her involved with Landmark

Forum which counsels about drug use and other life issues. She testified that from the

beginning Dr. Ibsen told her that he was going to do everything he could to get her off

pain medications that other doctors had been giving her (Tr. 551). He referred this patient

to chiropractic, physical therapy, did x-rays, MRIs, prolotherapy and other modalities.

He referred the patient to a pain interventionalist in Helena (Tr. 553). He referred her to

naturopathic doctors (Tr. 556). She also testified that she had stopped taking narcotic

pain medications with Dr. Ibsen’s help.

Patient number 5 testified that Dr. Ibsen sent her to a naturopathic doctor to talk

about other modalities including massage (Tr. 588).

The Board rejected Finding of Fact 16 for no legitimate reason. The evidence

supported the fact that Dr. Ibsen referred some his patients to Landmark Forum. The

Hearing Examiner noted that it was a “program designed to transform people’s lives by

helping them create a powerful life full of self expression, joy and access to power” (Tr.

627). Dr. Ibsen testified that he referred some of these patients to Landmark Forum and

14. PETITIONER’S BRIEF
the patients confirmed that. The fact that there may not be a specific reference in all of

the patients’ records to the referral to Landmark Forum should not negate the fact that he

did refer patients to Landmark Forum on occasion. The Board simply wants the record to

look devoid of things that Dr. Ibsen did for the benefit of his patients. It is flatly a mean

spirited attempt to reconstruct what happened with these patients in the narrow minded

view of the Board. It also ignores the evidence in the patients’ records (Exhibit L) and is

thus arbitrary, capricious and clearly erroneous.

The Board tossed Finding of Fact 18 for no legitimate reason. The fact of the

matter was that Dr. Ibsen testified that he had formed verbal contracts to limit patients’

use of pain medications and their agreement to use only one pharmacy. The Hearing

Examiner found that the MPDR records (Exhibit M) were consistent with that testimony.

The Board simply does not want to believe that. Dr. Ibsen did indeed indicate that these

agreements were verbal and thus they wouldn’t be in the patients’ records. The Board is

saying that if it’s not in the patients’ records the Doctor can’t testify that he had a verbal

contract. If indeed the patients testify that he had a verbal contract and Dr. Ibsen testified

he had a verbal contract, there isn’t any need for the verbal contract to be in the patient’s

record. That’s what occurred here. Again, this is clearly reversible error.

The Board totally rejected Finding of Fact 21. It also states that there was an

inaccurate classification of two drugs, Tramadol and Ultram as non-narcotics when

indeed they are narcotic. However, just an internet search of whether Tramadol (also

called Ultram) is a narcotic reveals that it is indeed not a narcotic. That internet search is

attached as Exhibit C. Further, the Board rejects Finding of Fact 21 because it says there

15. PETITIONER’S BRIEF
is “virtually no documentation of Dr. Ibsen’s use of alternative treatment.” That is quite

misleading. A packet of these documents from the evidentiary record will be shown to

the Court at the hearing/argument herein. Dr. Ibsen did prescribe acetaminophen to the

one patient and was criticized for it. He prescribed all kinds of other modalities which

constitute treatment or alternative treatment to narcotics. It’s important to remember

again that these 9 patients were cherry picked by the lady who was fired for cause and

then filed a complaint against Dr. Ibsen with the Board of Medical Examiners. The

Board didn’t do a random sampling review of Dr. Ibsen’s files, they looked at these 9

cherry picked files and then, as will be discussed later on, other patients who came to Dr.

Ibsen late in the proceeding who had been discharged or unable to see their doctor (Dr.

Christiansen in Hamilton, Montana) because the doctor was being sanctioned or

suspended by the Board for other matters.

The Board rejected entirely Finding of Fact 25 by essentially saying that Dr. Ibsen

didn’t use the MPDR because they couldn’t find it in the 9 patients’ files. As stated

previously, the unrebutted testimony from Dr. Ibsen was that he and his clinic frequently

used the MPDR shortly after it came on line. He testified that it was a great tool and that

he instituted a policy requiring his office to use it. He also employed internal policies at

his clinic consistent with the Substance Abuse And Mental Health Services

Administration (SAMSA) policies. There was no contrary evidence offered by the

Board’s attorney. There is no contradictory evidence in the file. There is no legitimate

reason for throwing out that testimony except that it’s a part of the Board’s effort to make

Dr. Ibsen look bad so it could then punish Dr. Ibsen, who dared to confront the Board.

16. PETITIONER’S BRIEF
The Board did another wholesale rejection of the Hearing Officer’s Finding of

Fact 27 for no legitimate reason. The MPDR records which are Exhibit M were admitted.

These were records that Dr. Ibsen testified were in his office and which kept track of the

pain medications prescribed for these 9 patients. Further, Dr. Ibsen pointed out that most

of the 9 patients had been seeing other providers previous to Dr. Ibsen seeing them for

the first time and when they saw Dr. Ibsen for the first time they had already been placed

on narcotic medications by these other doctors. A review of these patients’ records show

that Finding of Fact 27 is supportable by the records. The Board states that the finding is

not supported by the “competent substantial evidence” because the Hearing Officer

provided no citation to evidence of record. That’s not an appropriate determination by

the Board. If the Board wants to make the determination that the finding is not supported

by the competent substantial evidence it needs to look at the record evidence. It can’t just

blithely hold that because that was not specifically cited by the Hearing Officer that it

does not exist. Indeed, it does exist. For example, the Hearing Officer in Finding of Fact

number 43 discussing patient number 1 noted from the patient records that the patient had

had 8 surgeries prior to and while seeing Dr. Ibsen and presented with pain in her

abdomen and bruising. Thus, she was a chronic pain patient on pain medication before

she saw Dr. Ibsen and yet the Board throws out all of that by rejecting all of that on page

11 of its Final Order when it discarded the Hearing Officer’s Finding of Fact number 27.

Relative to patient number 2, the Hearing Officer pointed out that the Board’s

witness, Dr. Kneeland, testified that the amount of mediation which had been prescribed

for this patient on May 3, 2012 was excessive. However, Dr. Kneeland neglected to point

17. PETITIONER’S BRIEF
out that Dr. Ibsen did not prescribe any of those prescriptions to the patient (Exhibit 28-

2). A different doctor did that. The Hearing Officer pointed out that this poor patient had

multiple issues, including stomach ulcers, depression, anxiety, abdominal cancer for

which she had had a splenectomy, a hysterectomy, a hernia operation, gallbladder surgery,

two back surgeries, a gastric bypass and had lost 100 pounds. Obviously she was under

the care of other doctors as and while Dr. Ibsen was trying to help her. Obviously she had

received pain medication from other doctors and before she became a patient of Dr.

Ibsen. It is not rocket science to make that leap here, and yet the Board just tosses it to

the wayside. This poor lady died shortly after the trial.

The Hearing Officer discusses patient number 3 in the Proposed Order and how

she had three injury inducing falls during 2012 and had had two previous neck surgeries,

two thoracic outlet surgeries, a rotator cuff surgery and two lower back fusions. These

were all surgeries that Dr. Ibsen did not perform as he is not a surgeon. She also had a

traumatic brain injury and signs and symptoms of fibromyalgia. According to the

records, Dr. Ibsen conducted a complete physical examination and took a complete

history at every visit. See, Exhibit L-3. As the Hearing Officer found in Finding of Fact

59, “Dr. Ibsen took a more thorough history than any other physician.” Dr. Ibsen also

referred this patient for alternative modalities of chiropractic, physical therapy, x-rays,

MRIs, prolotherapy, swimming and massage classes. The patient also noted that she had

a pain contract between herself and Dr. Ibsen. Again, none of that is considered by the

Board in its wholesale rejection of Finding of Fact 27 which is inappropriate.

18. PETITIONER’S BRIEF
Patient number 4 had quite a lot of mental difficulties and had had prescriptions to

help with anxiety, bipolar syndrome, sleep and other psychological disorders. He was

referred by Dr. Ibsen to a psychiatrist. He credited Dr. Ibsen with saving his life.

Patient number 5 (Exhibit L-1) was another patient who had a very complicated

medical history, as the Hearing Officer outlines in detail with reference to the record

beginning with his Finding of Fact 48 and concluding with Finding of Fact 109. Patient

number 5 herself testified that she was desperate to find a doctor who would listen to her

and try to figure out what was wrong in causing her so much headache and pain. She

testified that Dr. Ibsen actually dug in and ordered a CT and found an infection, a serious

infection in her sinus (Tr. 580). Dr. Ibsen used a number of medications and modalities

for this poor patient who had 6 gynecological surgeries and was in an immense amount of

pain for a considerable period of time. She testified at Tr. 585 that Dr. Ibsen conducted a

physical exam and told her that she would be on pain medication for only short term.

She testified that Dr. Ibsen told her that if she was going to get pain medications from

anyone else he would no longer prescribe them for her (Tr. 587). She testified that Dr.

Ibsen sent her to a naturopath and talked about other modalities, such as massage (Tr.

588). She testified that Dr. Ibsen weaned her from all pain medications by the time that

she last saw him in March 2013 (Tr. 590). There were 7 urinalysis ordered and one drug

screen ordered as shown in her records.

Patients 6, 7, 8 and 9 all received care from Dr. Ibsen but had received care from

others earlier and for the most part were on prescription drugs from other providers

before and after they were patients of Dr. Ibsen. The Hearing Examiner discussed

19. PETITIONER’S BRIEF
pertinent aspects of their care from Dr. Ibsen in Finding of Fact 110 through 120, all of

which was tossed by the Board (pp. 16-34).

The Board did another wholesale rejection of Hearing Officer’s Finding of Fact

28 for no legitimate reason. Again, the Board says that it rejected the finding as not

supported by competent substantial evidence because the Hearing Officer did not provide

a citation to the record evidence. That doesn’t mean it didn’t exist and certainly there’s

2700 pages of patient records here and while the Board members all took an oath and said

that they read all the records in this case, we have serious doubt that some of them read

any of them. Because if they had read the records they would have seen that Dr. Ibsen

did conduct a full physical examination paired with a history. (Dr. Ibsen used a

streamlined record format developed by his billing company, Practice Velocity. One

needs to look at it closely to determine how to properly read it, but in this format there is

an immense amount of medical information.) They would have seen that this Finding of

Fact was well supported by the record evidence. They would have seen that Dr. Ibsen

spent a significant time listening to them and doing a physical examination to get to the

source of the patient’s complaints. He did diagnostic studies and lab tests and would

refer the patients for MRIs, CT scans, psychiatric issues and physical therapy. The

records and, to a greater degree, the patient’s testimony indicated that the time he spent

with them frequently included counseling that other doctors might refer out. There is

absolutely nothing in this Finding of Fact which wasn’t also in the patients’ medical

records and testimony from those patients who did testify. The fact of the matter is, it is

wrong for the Board to say something doesn’t exist because there isn’t a specific citation

20. PETITIONER’S BRIEF
in the Finding of Fact of the Hearing Officer. The Board certainly doesn’t say the matter

doesn’t exist, it just says that there isn’t a citation to it, therefore it doesn’t exist. That’s

wrong. That is clearly erroneous and arbitrary and capricious.

The Board did the precise same thing by rejecting Finding of Fact 29.

The Board’s modification of Finding of Fact 30 is a bit peculiar. First of all, it

said what it was going to do in the deliberation it had on January 14, 2016, and then

somehow miraculously changed its mind and decided to modify the finding instead. It is

not too big a deal but in the scheme of things it’s really another ridiculous change made

by the Board without any discussion during its two deliberation processes. It was simply

done. Whether it was done in a backroom or by whom on the Board it was done, we

don’t know. We’re only left to guess.

The Board did the same thing relative to Finding of Fact 35 as it did in Finding of

Fact 30. That is, it decided to change what it said it was going to do at its January 14,

2016 deliberation by giving an explanation of statutory requirements applicable to

physicians authorizing a patient’s use of medical marijuana to treat severe chronic pain,

even though that wasn’t an issue in this case. It appears that it did accept Finding of Fact

35 but couldn’t resist the temptation of saying something about it. It continues to

demonstrate the ill will of the Board for Dr. Ibsen for his challenges to the Board.

The Board rejected Finding of Fact 36 based upon its belief that the finding was

not supported by the “competent substantial evidence because Dr. Ibsen’s records lack

adequate documentation of the reasons for the patient visits.” There are 2700 pages

which outline the reasons for the patients’ visits. There is no legitimate basis for tossing

21. PETITIONER’S BRIEF
out this Finding of Fact on basis that there is no record of the reason for patient visits

when every patient visit has a reason set forth for it. If the Board would read the records,

it would realize its error.

Finding of Fact 37 is largely based upon the testimony of Dr. Ibsen. Also, patient

number 3, as discussed in Finding of Fact number 60, testified that Dr. Ibsen

recommended swimming and massage but patient 3 indicated that her insurance would

not cover those modalities. Her insurance did cover modalities such as chiropractic care,

physical therapy and naturopathic medicine which Dr. Ibsen recommended for the

patient. Indeed, there was treatment for pain which was an alternative therapy which

insurance wouldn’t pay for. That is part and parcel of Hearing Examiner’s Finding of

Fact 37 that should not have been simply cast aside because there wasn’t a page reference

or an exhibit reference to the same. It actually was in the testimony as cited by the

Hearing Examiner. This patient number 3 also testified extensively (Tr. 545-568) and

corroborated her records in Exhibit L and Dr. Ibsen’s testimony.

Patient 3 testified that Dr. Ibsen “would start from the beginning again every time

I would go in to him.” Tr. 549, l. 8-10. He took more time than anyone she had

previously seen. Tr. 549, l. 18. He would take a “whole history” and go through her

medications every visit. Tr. 550, l. 18-24. He often referred her to Landmark Forum. Tr.

551, l. 9-12. He referred her to all kinds of other modalities and a pain doctor. T. 553, l.

10-23. He routinely talked with her about getting off of narcotics. Tr. 559, l. 8-12.

The next gross error begins at page 16 of the Board’s decision which rejected all

of Findings of Fact 40 through 120 of the Hearing Examiner’s decision. The basis for

22. PETITIONER’S BRIEF
this total rejection was that the Hearing Officer was a layman and that while he gave a

“detailed analysis of the medical records geared to facilitate a better understanding of the

complexity of the patient’s diagnoses and care,” he was not a doctor and therefore could

not enter such findings. See page 16 of the Board’s final order. This case was entrusted

to a Hearing Examiner. The Hearing Examiner is a quite experienced attorney. There

was no objection from the Board’s counsel at the time of the hearing or at any time until

the Board didn’t like what was given to it. Throwing out all of the Hearing Examiner’s

findings about the 9 patients and his “detailed analysis” of their medical records finds no

support in the law. It was his job to make those findings and he did it. The fact that he

was not a medical doctor has nothing to do with whether he could enter those findings or

not. We suppose that if the Board doesn’t like this Court’s decision it will simply argue

that they don’t have to follow this Court’s decision because, after all, you are an attorney

and not a medical doctor. No law has been cited by the Board giving the Board the right

to simply ignore and reject the Hearing Examiner’s findings of fact because he is an

attorney. The Hearing Examiner’s preface to his discussion and entering of his findings

40 through 120 is telling. The Hearing Examiner at page 11 of his decision starts by

indicating that it’s unclear how the 9 patients were selected by the Board of Medical

Examiners but that he was concerned that they appear to have been hand selected by the

former disgruntled employee of Dr. Ibsen’s. Further, if indeed it was that employee’s

charge that patients were receiving poor care or were receiving too many narcotics, why

did she wait three years before filing her complaint.

23. PETITIONER’S BRIEF
On page 12 the Hearing Examiner found that the patients’ accounts of their

medical care was “more reliable about what happened during their visits with Dr. Ibsen

and with any other providers they may have seen.” There is no basis to challenge this in

the record or otherwise. Instead, though, the Board simply strikes it from any and all

consideration.

The fact that in Finding of Fact 41 the Hearing Examiner found that the Board’s

only doctor expert witness “did not specifically criticize the care of any of these nine

patients” is significant and doesn’t really have anything to do with a medical issue. And

yet, the Board has tossed that finding to the wind. Importantly, if the Board’s expert

found nothing to criticize as far as patient care goes, this entire proceeding should be

dismissed.

At Finding of Fact 49, the Hearing Examiner pointed out that Dr. Kneeland was

critical of Dr. Ibsen because patient number 1’s pain medications increased 50%.

Interestingly and as the Hearing Examiner pointed out, Dr. Kneeland failed to mention

that the 50% increase in the amount of opioids occurred while the patient was “not Dr.

Ibsen’s patient.” Again, this has a lot to do with the credibility of the Board’s expert

witness. It has a lot to do with how closely the Board’s expert looked at the medical

records and how closely the Board scrutinized its own expert. It’s a finding that certainly

can be entered by an attorney versus a doctor.

Earlier discussion herein focused on the number of times that the Board rejected

any consideration of the medical records because the MPDR record itself was not

attached to or included amongst the pages of the various patient’s records. However, if

24. PETITIONER’S BRIEF
we take a look at Finding of Fact 54, which was not contested and which was entered by

the Hearing Examiner, as an attorney and not as a medical doctor which he need not be,

we see that the Hearing Officer notes the following:

Each prescription that Dr. Ibsen writes is photocopied and faxed, so there
is a copy in the chart. Dr. Ibsen does not write down all prescription
information in his notes because he keeps a copy of every prescription
written as a part of the patient’s records. (Tr. 55)

We are not certain why it is that the Board feels that this Finding of Fact could not

be entered by anyone other than a medical doctor. What the Hearing Examiner did was

he went through all of the medical records and entered relevant findings of fact. There is

no basis for tossing those out the window by the Board. Further, this finding shows how

meticulous, diligent and careful Dr. Ibsen was with his prescriptions.

As far as records were concerned, the Hearing Officer indicated in Finding of Fact

59 as concerns patient number 3, that Dr. Ibsen conducted a complete physical

examination and took a complete history at every visit according to patient number 3. Dr.

Ibsen took a more thorough history than any other physician, according to patient number

3. Patient number 3 testified that Dr. Ibsen “wrote down pretty much everything”, that

often he made notes about his discussions with the patients and would give them those

notes to take home with them. Again, the Hearing Examiner, as an attorney, could make

that Finding of Fact and didn’t need to be a doctor in order to do so. That Finding of Fact

is not otherwise contested by the Board and thus should stand. It also shows that Dr.

Ibsen was conscientious about his record keeping and his use of physical examinations.

25. PETITIONER’S BRIEF
As you go through these findings of fact, each and every one of them has nothing

to do with a medical determination. These are findings about what the records indicate

and what the witnesses testified about which can certainly be made by an attorney. There

isn’t a single solitary one of these findings of fact which require a medical background or

which constitute a medical interpretation. Interesting also, the Hearing Officer’s Finding

of Fact number 97 specifically references one of the exhibits, i.e., Exhibit L-1, page 676

and 681 and 680, which shows that Dr. Ibsen tried to refer patient number 5 to Al

Anon/Narc-Anon on a couple occasions. Remember that in rejecting Finding of Fact 37,

the Board stated that such testimony was not substantiated by the documentation. Once

again, the Board didn’t look closely at the evidence in this case, if at all.

This case arose from the allegation by the terminated employee that Dr. Ibsen was

providing too much narcotics to patients and 9 patients were singled out. In Finding of

Fact 108, the Hearing Examiner criticized Dr. Kneeland’s testimony about the dosage of

opioids that patient number 5 had received and pointed out that Dr. Kneeland neglected to

acknowledge that patient number 5 was receiving about one-half of what had been

prescribed over the course of the previous year and that other physicians were prescribing

more hydrocodone for patient number 5 than Dr. Ibsen had. Again, that’s a Finding of

Fact that can be entered by an attorney. One doesn’t need to be a medical doctor to enter

that Finding of Fact.

The same is true with regard to patient number 6. As noted in Finding of Fact

111, patient number 6 had been receiving much and more pain medication from another

physician than he had from Dr. Ibsen. That patient had also received pain medication

26. PETITIONER’S BRIEF
because he had low back pain, shoulder pain, neuropathy, anxiety, five previous knee

surgeries on the right side, two previous knee surgeries on the left side and two previous

shoulder surgeries, as well as hernia and sinus surgery. One doesn’t need to be a medical

doctor in order to recite the fact that this patient had this medical history and had pain

therefrom.

The records relative to patient number 7 showed that he was receiving nearly half

of what he had been receiving when he began his treatment with Dr. Ibsen. Again, such a

finding is appropriately entered in this case. By rejecting everything the Board rejects the

fact that most of these patients were successfully weaned from their pain medications and

in the case of five or six of the nine, were totally weaned from their pain medications

while under Dr. Ibsen’s care. This rate of success was far greater than Dr. Kneeland’s rate

of success which he indicated was about 10%. And further, in considering Finding of

Fact 116, patient number 8 was a patient who had been receiving the same or higher

levels of hydrocodone than had been prescribed by Dr. Ibsen. Thus, this patient was not

able to get off of her opioids but the amount she received from Dr. Ibsen was less than

what she had received from other doctors. One doesn’t need to be a medical expert in

order to make that Finding of Fact either.

The Board modified Finding of Fact 121 to preclude the Hearing Officer from

finding that there was “no substantial evidence or expert testimony upon which to find

that Dr. Ibsen is suffering from a mental illness.” The Board once again made the

determination that whether Dr. Ibsen was stable or unstable required a medical

determination by a doctor, not an attorney. That’s not what the Hearing Examiner said,

27. PETITIONER’S BRIEF
however. What the Hearing Examiner said was that there was no substantial evidence or

expert testimony upon which such a finding could be made. Therefore it was irrelevant

to his decision. The Board offers nothing to contradict the fact that there was no evidence

presented by the Board’s attorney or his witnesses that Dr. Ibsen was suffering from any

mental illness. Therefore, it was evidence that never should have been presented at the

underlying hearing in any event, but it was. Thus it had to be addressed by the Hearing

Examiner. He did address the evidence and determined that there was nothing presented

to show that Dr. Ibsen was suffering from a mental illness or was mentally unstable.

At the hearing the Board’s attorney presented testimony about the interactions that

Dr. Ibsen had with two pharmacists. There must have been a point to that, we assume.

The fact of the matter was that the Hearing Examiner in Finding of Fact number 122

determined that nothing in those interactions rose to any significance in the opinion of the

Hearing Examiner. The Board didn’t like that and tried to cut that portion out of the

Finding of Fact. There’s no basis for doing that. The Board simply says that its decision

wasn’t based upon that but there’s no basis for striking it. That is error on the part of the

Board and tips its hand as to the bias and prejudice that the Board has for Dr. Ibsen. The

Board wanted the proposed order to read as it envisioned it, not as the evidence unfolded.

Finding of Fact number 123 was tossed without explanation. This finding and a

couple additional ones which followed involved a number of patients that had driven over

from the Hamilton area where they had been patients of a Dr. Christensen. Dr.

Christensen had trouble with the Board and had his license suspended or revoked. He

had a lot of problems noted in the press. In any event, he had some 3000 patients and 21

28. PETITIONER’S BRIEF
of them made their way to Dr. Ibsen’s office and he took care of them for a time and later

on most of those patients went somewhere else. The Hearing Officer determined that

those patients presented unique circumstances and were somewhat unrelated to Dr.

Ibsen’s normal practice. There is no basis for the Board to indicate that the Hearing

Examiner could not make that Finding of Fact. And thus again the Board tips its hand as

to the bias it has for Dr. Ibsen. And, the Board’s attorney put those 21 patients at issue

and the Hearing Examiner found no issue with Dr. Ibsen’s care, which the Board simply

wants to ignore.

In rejecting Finding of Fact 124, the Board states that the finding is not supported

by the “competent substantial evidence” because the finding contradicts testimony cited

by the Department regarding professional relationships between pharmacists and

physicians in Montana. We have no idea what that relates to but the fact of the matter

was that the finding was referenced to the transcript and that is not contradicted by the

Board, and thus it should stand.

The Board strikes a sentence from Finding of Fact 126 because there is not a

specific citation to the record. Again, the Board indicated that it went through the entire

record and yet is critical that there isn’t a citation presented to it concerning what they

have now stricken. It was in the record but the Board once again missed it. Indeed if the

Board would have taken the time to really review the record they would have seen that

DEA Agent Alisha Tuss specifically testified that she had received complaints from these

two pharmacists about Dr. Ibsen’s prescribing practices and that “we also had some

information from the Medical Board that there could possibly be something going on.”

29. PETITIONER’S BRIEF
Tr. 226, l. 2-6. Interesting that the Board would have reported “something going on” to

the DEA when the matter was yet in litigation. In any event, this confirms that the Board

of Medical Examiners might be investigating Dr. Ibsen as well. It certainly doesn’t take

rocket science to determine that this Finding of Fact should stand. The Board simply

doesn’t like the fact that it or its staff was caught evidently talking to the DEA about this

case when this case hadn’t been decided.

The Board purports to change Finding of Fact 134 to simply reflect what they

want the evidence to show rather than what the evidence did show. They have stricken

the sentence that “Dr. Kneeland testified that all of Dr. Ibsen’s prescribed pain

medications were for legitimate medical reasons (Tr. 477)”. The fact of the matter was

that that was what he said. He was specifically asked, “you’re not here testifying that any

prescribed pain medication was for anything other than a legitimate reason or purpose?”

Answer: “No.” (Tr. 476) As much as the Board would like it to be otherwise, that was his

testimony pure and simple. There wasn’t one single solitary patient pain medication

prescription that Dr. Kneeland was critical of. At least, when he realized that there was a

difference between some pain medications prescribed by some other doctors and not Dr.

Ibsen, then it was indeed his testimony that all prescribed pain medications were for

legitimate medical reasons or purposes as it related to Dr. Ibsen. In modifying Finding of

Fact 134, the Board is simply rewriting the case to justify the end result here, not to

accurately reflect the administrative trial which occurred here. Such is arbitrary and

capricious.

30. PETITIONER’S BRIEF
The Board modified Finding of Fact 136 to disregard that portion of the finding

that one of the pharmacists did things to demonstrate that he was on a mission to wean

Dr. Ibsen’s patients from their medication despite the fact that he was not a doctor and did

not understand their needs. The Board indicates that there is no citation to the record for

this aspect of the finding and thus reject it. The fact is, Mr. Gardipee testified that he was

a pharmacist and not a doctor. This Finding of Fact was really made based upon the

totality of the testimony given by the pharmacist, Mr. Gardipee. Indeed, he admitted

telling patients to go to a pain specialist, which certainly wasn’t his place as a pharmacist.

See, Tr. 313, line 18-24. At Tr. 318, line 23 through Tr. 319, line 4, Mr. Gardipee testified

that he didn’t think that chronic pain management was typically within the scope of the

practice of Dr. Ibsen or his Urgent Care Plus facility. That, of course, is not his place to

make that determination. Thus it became clear that this witness was making it his

practice to see that Dr. Ibsen’s patients were weaned off their medications despite the fact

he wasn’t a doctor and didn’t understand their needs.

The Board rewrote Finding of Fact 138 to make it look as though Dr. Ibsen

prescribed large doses of oxycodone for certain select patients, not mentioning those

patients or the reason why he so prescribed those medications. The Board also struck

because they couldn’t find it in the records that Dr. Ibsen prescribed these doses of

oxycodone to patients of Dr. Christensen for legitimate medical reasons. There wasn’t

one single solitary patient of Dr. Christensen’s who matriculated to the care of Dr. Ibsen

who was specifically criticized by any witness in this proceeding. Dr. Kneeland never

said that Dr. Ibsen prescribed medications for an illicit or illegitimate medical reason.

31. PETITIONER’S BRIEF
The pharmacist paid by the Board (Ms. Blank) to testify didn’t testify in that vein either.

No one testified that Dr. Ibsen prescribed pain medications to former patients of Dr.

Christensen for illegitimate medical reasons. And, as was pointed out, at Tr. 476 Dr.

Kneeland testified that all pain medication prescriptions were prescribed by Dr. Ibsen for

legitimate medical reasons and purposes. Thus, that modification of Finding of Fact 138

is erroneous.

The Board slightly adjusted Finding of Fact 139 because it stated that there was

no evidence to support Dr. Ibsen’s testimony connecting the actions of the DEA to the

Board. However, as we pointed out previously, DEA Agent Tuss indicated that she had

understood that there was concern by the Board about Dr. Ibsen’s prescribing practices.

Thus, though the Board wants to purge itself of any connection to this issue, Dr. Ibsen

believed it and the DEA believed it. Tr. 226, l. 2-6.

The Board again, in an effort to make the pharmacist look good and Dr. Ibsen

look bad, proposed to delete the first sentence of Finding of Fact 144 without any

legitimate basis for doing do. The fact of the matter was, Dr. Kneeland did not issue

complaints about Dr. Ibsen taking care of a handful of Dr. Christensen’s patients and thus

it was wrong for Mr. Gardipee to be complaining about Dr. Ibsen’s care for those patients.

The fact of the matter also remains that the Board approved Finding of Fact 145 which

states that “Gardipee is not credible in this area of his testimony and it undermines his

other testimony.”

The Board erroneously adjusted Finding of Fact 149. This change to Finding of

Fact 149 was simply designed to make its witness, Dr. Kneeland, look good and Dr. Ibsen

32. PETITIONER’S BRIEF
look bad. It threw out the Hearing Examiner’s finding as concerns Dr. Kneeland’s

opinions and position without acknowledging why it is that such should have been done.

The Hearing Examiner, in footnote number 7 to Finding of Fact 149, gave a very detailed

description of the fact that the MPDR records showed that Dr. Ibsen had great success in

reducing patients’ narcotic dosages. He noted that Dr. Kneeland’s calculations were in

error. That’s certainly something an attorney can do. One doesn’t need to be a medical

doctor in order to make that kind of a determination. The Board didn’t like the fact that

the evidence showed that Dr. Ibsen’s patients were largely successfully weaned from

opioids. The Board didn’t like the fact that Dr. Kneeland didn’t give Dr. Ibsen credit for

successfully weaning and reducing patients’ chronic opioid therapy. The Board didn’t

like the fact that Dr. Kneeland didn’t recognize that there were other doctors who

increased patients’ narcotics not Dr. Ibsen. There is simply no basis for throwing out the

important footnote number 7 to Finding of Fact 149.

The Board deleted an important aspect of the Hearing Examiner’s Finding of Fact

151, that is, that “Dr. Kneeland did not offer any specific criticism regarding the

treatment of patients 1 to 9 or the Christensen patients. On cross-examination, he did

offer opinions on whether patients 1 to 9 had weaned their opioids usage. As described

above, his calculations were so significantly opaque as to give them no weight.” The

only explanation for why the Board wanted that deleted is to make Dr. Kneeland look

better, to make his testimony look better than it was and to recognize the fact that indeed

their own expert did not offer any specific criticism regarding patients 1 through 9 or the

Christensen patients. That modification of Finding of Fact 151 is flatly wrong. And

33. PETITIONER’S BRIEF
again, the Board indicates that the Hearing Examiner cannot make such a judgment

because it involves a medical judgment. We’re not talking about medical judgments here.

We’re talking about whether Dr. Kneeland did or did not offer any specific criticism

regarding the treatment of patients 1 through 9 or the Christensen patients and the fact of

the matter is and the evidentiary record shows that he did not. Thus, the modification by

the Board is flatly false once again.

The Board did the same thing with regard to changing Finding of Fact 152. The

Hearing Officer found that Ms. Blank was not capable of giving opinions about the

quality of record keeping or Dr. Ibsen’s interactions with other medical professionals and

disqualified her testimony in that regard. And further, in Finding of Fact 152, the

Hearing Officer noted that “Ms. Blank was not qualified to render opinions on the

standard of care for a medical practice so no weight was given to her testimony about Dr.

Ibsen’s charting.” The Board stated that in this regard, “the Hearing Officer

misapprehended the purpose for which the Department’s expert pharmacist witness was

called to testify.” How in the world could the Board make a determination about what

the Hearing Officer appreciated or did not appreciate? There’s no way in the world that

the Board could make a determination as to the “purposes for which the Department’s

expert pharmacist witness was called to testify” than to look at the record. And in this

regard, Ms. Blank, the pharmacist admitted (Tr. 654, line 23 through 655 line 1) that she

was not qualified to discuss standard of care for a medical practice. Ms. Blank admitted

that the standard for prescribing narcotics and the management of that differed from

facility to facility (Tr. 709, lines 10 through 23). Certainly if Ms. Blank was not in a

34. PETITIONER’S BRIEF
position to testify regarding the standard of care for a medical practice, she certainly

couldn’t give testimony about charting of a medical doctor.

By modifying Finding of Fact 153, the Board disqualified Dr. Charles Anderson,

M.D., a now retired neurologist, from testifying in this case. The Hearing Examiner

determined that based upon his 30 years of practice and his experience in managing

patients with chronic pain, he was found competent to render an opinion as to whether the

standard of care was or was not met by Dr. Ibsen in caring for patients who were

receiving pain medications for their acute or chronic pain. The Board noted that Dr.

Anderson had stopped dealing with chronic pain patients for some 20 years prior to the

time that he testified. However, what Dr. Anderson testified to and which was important

to the Hearing Examiner, was that he would still act in a consultative role doing pain

management. In other words, he would help other doctors with the pain difficulties that

they were having with their patients. He would see patients and their records, take a

history, conduct a physical examination and then provide or recommend care (Tr. 737).

He testified that from 2000 to 2002 he was Chairman of the Credentialing Committee at

St. Peter’s Hospital and was Chief of Staff from 2002 to 2004. As such, he testified that

he was very familiar with doctors’ charting (Tr. 742). He felt that in reviewing Dr.

Ibsen’s records he could tell that the care rendered was appropriate in all respects. He

testified that he continued to prescribe pain medications and manage chronic pain

medications until his retirement in 2012 (Tr. 749-750). He treated patients concurrently

with other doctors. He was asked about his involvement in the management of care for

patients with chronic pain and gave a very detailed response at Tr. 758-759. He also

35. PETITIONER’S BRIEF
testified that Dr. Ibsen routinely offered alternatives to pain medications to his patients

(Tr. 768). He also testified that written pain contracts can be problematic (Tr. 770). He

testified at Tr. 771 that Dr. Ibsen’s care was appropriate and within all acceptable

standards of care based upon his years of experience.

What obviously crept into the Board’s determination concerning Finding of Fact

153 were the statements that Board member Dr. Guggenheim made at the deliberation

process on November 19, 2015 and again on January 14, 2016. She stated that she had

known Dr. Anderson for a number of years based upon her relationship and what she

thought he had done in his practice and didn’t feel that he dealt sufficiently enough with

the management of chronic pain and so she felt him disqualified. See pages 80 through

page 92, Transcript November 19, 2015. The determination whether Dr. Anderson

qualified as an expert has to be made based upon the transcript and the transcript supports

the finding by the Hearing Examiner that he was duly qualified to testify as an expert.

The fact that one of the Board Members had her own opinion outside of the evidentiary

record should not have been used at the deliberations. Interestingly, Dr. Guggenheim

again stepped out of the evidentiary record and seemed to rely upon a report dated

11/21/14 from Dr. Kneeland as constituting evidence upon which findings of fact could

be based. This is wrong. The letters that Dr. Guggenheim is referring to were pretrial

witness disclosures (see 11/19/15 transcript, page 96, line 12 through page 100, line 2).

Prefiled written disclosures do not constitute evidence, necessarily. These letters were

not offered into the evidentiary record as exhibits. They are simply pretrial disclosures.

As it turned out, Dr. Kneeland’s testimony was not the same as his disclosures. It’s the

36. PETITIONER’S BRIEF
testimony that has to be considered and utilized by the Hearing Examiner and that’s

precisely what he did. The fact that the pretrial disclosures differed from the actual

testimony of Dr. Kneeland sometimes happens but certainly the Board is wrong to set

aside the testimony in favor of the pretrial disclosure. That is simply error on the part of

the Board. In fact, Dr. Guggenheim specifically notes at page 98 (Tr. 11, 1915) that she

rejected Finding of Fact number 41 that Dr. Kneeland did not criticize the various cases

that were under concern because he did so in his prefiled disclosure. Again, it’s what Dr.

Kneeland testified to, not what he or an attorney wrote in a pretrial disclosure.

Dr. Guggenheim, who clearly monopolized the Board’s deliberation processes,

admitted at Tr. 96, l. 17-23 of the 11/19/15 Board proceeding that Dr. Kneeland did not

criticize the care of individual patients. She reiterated her reliance in the 1/14/16 Board

proceeding at Tr. 71-72 on the letter (pretrial disclosure) written by Dr. Kneeland, not his

testimony. She persisted at Tr. 80-84 (1/14/16 proceeding) in numerous places.

Further, what she said at Tr. 87-88 (1/14/16 proceeding) about standard of care is

quite analogous to what the Hearing Examiner found about standards of care changing

and evolving. For example, she stated:

It (standard of care) is the considered evolution and incorporation of
medical knowledge into the practice of medicine that is accepted by the
bulk of the profession . . . the aspects of care that constitute the standard in
this case for the treatment of chronic pain do evolve with time based on
certain facts and papers that were written . . ..

Tr. 87, l. 11-18.

The Board threw out findings of fact 154 and 155. First of all, with regard to

Finding of Fact 154, it is simply a citation from the Montana case of Chapel v. Allison,

37. PETITIONER’S BRIEF
241 Mont. 83, 92-93. The fact of the matter is, while Dr. Ibsen is board certified as an

emergency room physician and boarded as a family practice doctor, he is not certified as

a pain management physician and thus the statement should apply. The second facet

about findings 154 and 155 is that the standard of care concerning the treatment of pain

patients is changing and has changed over time. (Dr. Guggenheim confirmed it.) One

issue concerns the use of pain management contracts. For instance, pharmacist Ms.

Blank testified that St. Peter’s Hospital was only now going to the requirement of a

written pain management contract, that it had not been a requirement until quite recently.

Further, Ms. Blank testified and it is reflected in Finding of Fact 155 that the standard of

care regarding opioids prescription and pain management varies and that “different places

will adopt different parts of those recommendations” so that one facility might be

different than another facility but it doesn’t necessarily mean that either facility is

violating a standard of care.” (Tr. 709, lines 10-23) Further, Dr. Kneeland recognized that

some doctors use written pain contracts and some do not as was true in his locale. Even

in the literature there was debate over whether a written contract might adversely affect

the doctor-patient relationship of trust. In other words, there was not a standard of care

for using a written pain contract applicable to managing pain patients. What was

recognized by the Hearing Examiner in this case and what this Board fails to appreciate is

that there is no national standard of care which requires written pain contracts between

the patient and the doctor. This is why the Hearing Examiner noted in Finding of Fact

155, that there was confusion about what the affect of the standard of care is on an

individual standard practice or a statewide practice, etc. Certainly Dr. Ibsen should not

38. PETITIONER’S BRIEF
be sanctioned or reprimanded or disciplined for doing something that is different and not

contrary to any particular standard of care. Further, as we’ve pointed out previously, Dr.

Guggenheim may have relied upon what Dr. Kneeland said in a prefiled disclosure as

what constituted standard of care but we have to rely upon the testimony that he gave,

again, not on a prefiled disclosure statement. And in his testimony Dr. Kneeland

acknowledged that doctors conduct pain management differently location to location and

doctor to doctor.

With regard to Finding of Fact 156, the Board completely ignored the testimony

of the patients, all of whom testified that they were told by Dr. Ibsen that they could only

use one pharmacy for their pain prescriptions; that they could only see one doctor for the

pain treatment and might be subjected to urine drug screening. See for example, Tr. 554,

lines 18-21; Tr. 586, Exhibit 28-5; and Tr. 586: 16-21. They all had oral pain contracts.

The Board next modified Finding of Fact 157. The Board expressed some

concern that there was not documentation of the results of ongoing alternative modalities

or interventions attempted in the chart. However, Dr. Kneeland did testify (Tr. 442, lines

17-23) that “occasionally you would see something like headache better with this and

that’s kind of all.” In other words, Dr. Kneeland didn’t see or pay attention to the results

of the collaboration noted. However, the Hearing Examiner pointed out that Dr. Ibsen

often had discussions with the patients about previous treatment that wasn’t always

recorded in the patient records. There was no indication that such was part and parcel of

standard of care. All of the patients who testified talked about their extensive discussions

with Dr. Ibsen about what he had recommended, what they had done, etc. But here again

39. PETITIONER’S BRIEF
the Board simply discarded that evidence as though the Board didn’t want to hear that

evidence. Further, Dr. Kneeland did acknowledge that there were occasional references

to the results of the alternative modalities and thus it’s error for the Board to conclude

that there were no such discussions and an absolute failure to make note of such.

The Board discarded that portion of Finding of Fact 158 that states that Dr. Ibsen

adhered to standard of care by utilizing alternative modalities to narcotics. There is no

basis for that. The medical records of the patients show that Dr. Ibsen would wean most

of the patients off of narcotics and used other therapies and prescriptions to resolve their

issues. Why that was stricken makes absolutely no sense. As we go through the records

which are referenced in detail in proposed findings 40 through 120, we see that Dr. Ibsen

oftentimes prescribed prolotherapy, chiropractic, diagnostic imaging, physical therapy,

Landmark Forum, psychiatry, psychology, counseling, etc. for a lot of these patients and

that he uses alternative modalities quite often in his practice and in his treatment of

patients who have pain. The Board simply states that there is no competent substantial

evidence in the record of those other therapies or prescriptions to resolve pain issues, but

that statement is blatantly false. The testimony of the patients and their records

demonstrate how utterly erroneous, arbitrary and capricious this finding is.

The Board made slight adjustments to Finding of Fact 159, again in an effort to

disparage Dr. Ibsen’s testimony. Plainly Dr. Ibsen’s testimony was given no credibility

by the Board. If there was not something else by way of a medical record to substantiate

his testimony it was totally and always disregarded. This changes the burden of proof

and is unconstitutional. Dr. Kneeland admitted at Tr. 461, lines 20-22 that he did find

40. PETITIONER’S BRIEF
instances in the records of referrals to other specialists and communication from that

specialist about their findings to Dr. Ibsen. He also admitted that with regard to the issue

of early refills that there could be legitimate reasons for the same. Tr. 465, line 20. It

could be, for instance, that the pain was initially undertreated. Tr. 465, line 23. He

indicated that many times he would have to increase a patient’s pain medications for a

number of reasons. Tr. 466, line 1. He testified that the amount of opioids prescribed by

Dr. Ibsen were “relatively safe on a person’s organs.” Tr. 467, line 10-17. Further, in

Finding of Fact 159, the Hearing Examiner noted that “there was no expert testimony that

Dr. Ibsen’s prescribing practices led to any harm to his patients.” Further, at Tr. 475, Dr.

Kneeland testified that there was no patient who had any long term, bad outcome because

of any of the pain medications that had been prescribed for them. Thus, this statement is

true and should not have been stricken by the Board. The testimony was substantiated by

the testimony of the Board’s witness Dr. Kneeland in this respect.

Finding of Fact 160 was the only Finding of Fact to which Dr. Ibsen filed an

exception. The attorney for the Board likewise had difficulties with that finding but the

Board went ahead and accepted it as reflected by the Hearing Officer. The gravamen of

Finding of Fact 160 as it related to Dr. Ibsen was that he did not regular identify his

reasons for prescribing early refills in the patients’ records and should have better

documented that. Dr. Kneeland was asked whether it was a breach of the standard of care

to offer refills habitually and the Doctor indicated that without documentation it is a

breach of the standard of care to offer them habitually. Tr. 428, lines 6-8. He also stated

that it could be a breach of the standard of care to offer them with any regularity without

41. PETITIONER’S BRIEF
documentation of that rationale but that it could be accepted. Tr. 426, lines 8-12. Thus,

the only expert testimony from Dr. Kneeland was that there should be documentation of

the rationale for early refills if they were habitually or regularly given. There is no

evidence in this case that they were habitually or regularly given. There is no testimony

that if there was an occasional refill that there had to be an additional documentation.

The testimony does not provide that. Moreover, no one testified or criticized the amount

or kind of pain meds prescribed by Dr. Ibsen. No one testified that Dr. Ibsen did not

counsel with the patient about their use of medications and have an agreement with them

about getting the medications at one place using only Dr. Ibsen as their prescriber. All

patients trusted Dr. Ibsen implicitly and none of his patients were ever abandoned by him.

Further, Starla Blank, the pharmacist called by the Board’s attorney, testified that there

were a number of legitimate reasons for early refills (Tr. 708). She testified that pill

counts are not required or considered standard of care (Tr. 709). Dr. Kneeland confirmed

that in his testimony (Tr. 426, lines 1-3). Ms. Blank testified that she was unaware of any

evidence that any of the 9 patients diverted any medications (Tr. 712). She admitted that

all 9 patients had a good relationship with Dr. Ibsen (Tr. 715-716). She testified that she

was not aware of any case where Dr. Ibsen’s prescriptions exceeded manufacturer’s stated

limits (Tr. 717-718). Furthermore, in Finding of Fact 161, the Hearing Examiner found

that Dr. Kneeland was not qualified to render an opinion whether Dr. Ibsen’s

documentation met standard of care and thus, there was no contrary evidence that Dr.

Ibsen breached standard of care by failing to document his reasons for allowing early

refills. There is simply no testimony in the record to support that aspect of the Hearing

42. PETITIONER’S BRIEF
Examiner’s findings of fact. There is reference at the end of Finding of Fact 160 to a

transcript citation 437: 1-6, but the language that appears there doesn’t have anything to

do with any early refills. It states there as follows:

… original 9, did you find evidence that he had conducted
interviews with patients to determine if they were at risk?

A. I recall seeing once case of a mental health evaluation for a patient,
but other than that, no.

There is, thus, no basis for the assertion that the record keeping was inadequate or

insufficient from the point of standard of care. No one testified that Dr. Ibsen’s record

keeping was inadequate as a matter of standard of care. Therefore, that aspect of the

Finding of Fact 160 should be set aside.

The Board made changes to Finding of Fact 161 to cast Dr. Ibsen in a poor light

and ignored the fact that the evidence presented concerning standard of care and its

various iterations and as it pertained to this case was not black and white. Standard of

care was changing. Dr. Kneeland acknowledged that one doctor that dealt with pain

management in the Kalispell area dealt with it differently than another doctor. He wasn’t

sure how the hospital dealt with aspects of pain management. He simply knew what he

did in his own clinic. Thus, for Dr. Kneeland to testify about what the standard of care

was as it affected Dr. Ibsen was anything but black and white. It is certainly within the

province of the Hearing Examiner to make the determination whether expert medical

opinion has proved a particular point or not proved a particular point.

The Board struck from Finding of Fact 163 the last two sentences which stated

that, “the Hearing Officer’s review of all the patients’ records found a considerable

43. PETITIONER’S BRIEF
number of reports from specialists and notations that the results were communicated to

the patient. Dr. Ibsen met this standard of care.” The Board simply strikes this and says

that his decision is not based upon the competent substantial evidence. The Hearing

Officer said that he reviewed the patients’ records and found considerable numbers of

those reports. The Board simply took it upon themselves to ignore that. The Board

doesn’t indicate that it actually went and looked and couldn’t find what the Hearing

Officer was referring to. It simply ignored, wrongfully, the Hearing Officer’s finding.

The Board also indicates that Dr. Kneeland gave undisputed expert testimony regarding

follow-up documented in the records. Dr. Kneeland indicated that he found

documentation but he wasn’t asked how much, whether it was enough, whether it was too

little, whether it was inadequate or what. It was thus error for the Board to make this part

of its finding and reject that part of Finding of Fact 163.

Once again, the Board in rejecting a portion of Finding of Fact 164 simply ignores

that the Hearing Officer who is the Trier of Fact in the underlying trial found that Dr.

Ibsen did not violate any standard of care which requires regular assessment of a patient.

He saw these patients often. There are some 2700 pages of medical records concerning

only 9 patients for a limited period of time. How the Board can simply say this finding is

not supported by the evidence is an absurdity.

The Board deleted the significant portion of Finding of Fact 165. The fact is, Dr.

Kneeland testified that some doctors use written pain contracts and some doctors do not

use written pain contracts. He went on to testify, although this portion is ignored by the

Board (Tr. 470), that there are doctors in his area that don’t employ written pain contracts.

44. PETITIONER’S BRIEF
At Tr. 470 he testified that he wasn’t sure if his own hospital mandated the use of written

pain contracts. He simply acknowledged that his own clinic does. At Tr. 740, Dr.

Charles Anderson felt that in reviewing Dr. Ibsen’s records he could tell that the care

rendered was appropriate in all respects. He also testified that written pain contracts can

be problematic (Tr. 770). At Tr. 878, Dr. Ibsen testified that a written pain contract could

negatively affect his doctor-patient relationship and that his goal was to never carry on a

patient long term (Tr. 878). In summary, with respect to the use of a written controlled

substance agreement or pain contract, there simply was no evidence that established that

it was standard of care. It may be in the process of becoming standard of care but was

not at the time of this hearing the standard of care. Indeed, Ms. Blank testified that her

hospital, St. Peter’s Hospital, did not mandate the use of written pain contracts up until

the time of the hearing at least. For that reason, the Hearing Officer determined that the

use of pain contracts are not standard of care and that Dr. Ibsen did not violate such

standard of care if it did exist. It is further interesting that Dr. Kneeland was asked about

a recent article in the New England Journal which posited that the generally accepted

practice is to rely upon the patient’s history in treating the patient and that pain contracts

were not mandatory though they might be suggested. See, Tr. 469, line 1-22. With

regard to Finding of Fact 166, the Board simply rejected it. The Hearing Examiner

simply noted that there was no evidence presented at the hearing that pain contracts

achieve a better result for the patient. And, the Hearing Examiner cited at Tr. 469 that Dr.

Kneeland agreed that the generally accepted practice is to rely upon the patient’s history

45. PETITIONER’S BRIEF
in treating the patient’s pain. That is a matter of fact and it should not be simply

discarded by the Board.

The Board also rejected Finding of Fact 167 which was simply a recitation of a

colloquy between Dr. Ibsen’s counsel and Dr. Kneeland. The Hearing Examiner

supported his belief and his finding that the use of pain contracts to be standard of care

should not be relied upon. The fact is that Dr. Kneeland said pain contracts were not

mandatory but might be considered in the treatment of chronic pain. He acknowledged

that a fair number of physicians even in Kalispell don’t use pain contracts and he wasn’t

sure if his own hospital did so. The fact that here is a citation of testimony in this Finding

of Fact is certainly no reason to avoid it, disregard it, not consider it and thus this

rejection of Finding of Fact 167 is flatly wrong.

Regarding Finding of Fact 168, again, the Board simply discarded and thereby

struck the Hearing Examiner’s consideration of Dr. Ibsen’s testimony and changed what it

was that the Hearing Examiner was looking at. The Hearing Examiner made reference to

Exhibits L-1, L-2 and L-3 to arrive at the finding that key elements of a pain contract

were indeed part and parcel of what Dr. Ibsen included in his treatment of patients

without a written pain contract.

The Board simply rejected Finding of Fact 169 in its entirely. There is no single

one of the facts set forth in Finding of Fact 169 that is not well contained and reflected in

the evidentiary record. As the Hearing Officer said, “Dr. Ibsen’s decision not to employ

written pain contracts cannot be a basis for a finding of misconduct when Helena’s largest

medical facility did not adopt them until well after the time period when all of the

46. PETITIONER’S BRIEF
conduct at issue in this matter occurred.” For the Board to blithely state that, “hospitals

do not prescribe medications” ignores the fact that it was not required of the doctors at

the hospital to use written pain contracts begs the issue. It is flatly erroneous for the

Board to strike Finding of Fact 169.

The Board once again in disregarding a portion of Finding of Fact 170 does so

without any legitimate justification. The fact of the matter was, Dr. Ibsen did testify that

he had one patient who he felt was doctor shopping and he quit prescribing pain

medication for that patient as soon as he learned of that. It is just fallacious reasoning as

to why it would be that the Board would strike that portion of Finding of Fact 170.

The Board rejected Finding of Fact 171 and put in place its own position and

feeling about what is part of standard of care when a patient is treated for chronic pain

using narcotics. The Hearing Examiner determined, however, that pain contracts are not

yet the standard of care for all physicians treating chronic pain and thus he cannot

conclude that a pain contract is the standard of care. Furthermore, he noted that Dr. Ibsen

did use urinalysis when he had concerns about prescribing opioids to a particular patient.

The Board acknowledged that Dr. Ibsen employed urinalysis occasionally.

The Board added a sentence to this Finding of Fact which is incorrect. It stated

that the record submitted into evidence contain absolutely no records of Dr. Ibsen’s

search of the MPDR. That is not true. Dr. Ibsen testified that he relied upon the MPDR

beginning in February of 2013. He produced records relative to the 9 patients of their

MPD records and said that he relied upon them when he and his office got on line and

47. PETITIONER’S BRIEF
began to use them. Thus, there are records admitted into evidence that show his

utilization of the MPDR. This statement/addition to Finding of Fact 173 is flatly false.

Finding of Fact 174 basically shows that Dr. Ibsen’s ability to wean his patients

from narcotics either entirely or to a lesser level was affirmed by the patient’s records.

The Board didn’t like that and thus struck in its entirety Finding of Fact 174 and entered

their own opinion, their own finding about that issue. Thus, the Board is not so

concerned about what the findings said or whether they are justified and supported by the

record evidence. But instead the Board is more concerned about how the order should

look in its own view, not based upon the record evidence. This additional language

proffered by the Board is not a part of the record evidence and should be rejected.

The Board strikes a portion of Finding of Fact 175 and makes reference to Dr.

Anderson’s testimony in this finding. The finding, though, doesn’t specifically refer to

Dr. Anderson although what Dr. Anderson testified to was that during the slice of time

that he looked at, Dr. Ibsen was batting better than Dr. Kneeland’s 10% weaning rate.

That, of course, is clearly true. The Board is simply offering various passages from Dr.

Kneeland’s testimony in an effort to bolster his position in this case but it has no affect on

the outcome of this Finding of Fact which was that Dr. Ibsen’s rate of successful weaning

was better than Dr. Kneeland. That is a fact borne out from a review of the patient

records of the 9 patients involved here.

The Board changed Finding of Fact 177 to take out the words that Dr. Ibsen was

relatively successful in his weaning results with his patients. Again, taking that passage

out of Finding of Fact 177 is designed to make Dr. Ibsen look bad and unfairly reflect the

48. PETITIONER’S BRIEF
evidence which was indeed that Dr. Ibsen was more successful in weaning his patients

than was Dr. Kneeland.

The Board for whatever reason struck Finding of Fact 179 and we’ve made

reference to this on numerous occasions heretofore. Dr. Kneeland testified that he was

unaware of any patient who received medication for any purpose other than a legitimate

medical purpose. Reference to Tr. 470 may be a ministerial mistake but indeed Dr.

Kneeland did testify at Tr. 476 that he was not aware of any prescribed pain medication

being prescribed for anything other than a legitimate medical reason or purpose.

Q. You are not here testifying that any prescribed pain medication was for
anything other than a legitimate medical reason or purpose?

A. No.

Tr. 476, line 19-22.

Finding of Fact 181 was changed as the Board continued its refusal to consider

any testimony by Dr. Ibsen or any testimony by his patients. The Hearing Examiner

found that some of the patient charts were illegible but that Dr. Ibsen was indeed able to

demonstrate that he was not over prescribing any pain medications or inadequately

monitoring his patients. That is certainly within the providence of the Hearing Examiner

and cannot be set aside without some finding that there was no basis for it or that it was

clearly erroneous. Indeed the Hearing Examiner pointed out that Dr. Ibsen does have a

new record keeping system which is better detailed and understandable. That portion is

evidently acknowledged by the Board because it wasn’t changed or addressed by the

Board.

49. PETITIONER’S BRIEF
The Board adds a sentence at the end of Finding of Fact 183 that there was

another local pain specialist in Helena in an effort to detract from the fact that there are

too few doctors willing to treat chronic pain patients and particularly in the Helena area.

For the benefit of the Board, Dr. McLaren is a pain specialist but he engages in

interventional pain therapy. He doesn’t see patients as Dr. Ibsen does on a routine basis.

Again, this provision is added to bolster the Board’s desire to punish Dr. Ibsen and make

it appear as though others can provide the services Dr. Ibsen has provided and therefore

there isn’t any need for him to be licensed and providing pain management to folks in the

Helena area. It is vindictive and it is punitive what the Board is trying to do with this

Finding of Fact.

The wholesale rejection of Finding of Fact 184 again without any specific

references as to why it is rejecting this finding makes no sense. The Finding of Fact is

addressing Dr. Ibsen’s care for a number of patients from a totality of circumstances point

of view and the Hearing Examiner concluded that there was no over prescribing, that

there was clear evidence of tapering of opioid prescriptions, that Dr. Ibsen placed his

patients’ needs first and that he was well aware of the possibility of a diversion and in fact

aided law enforcement in protecting the public from the dangers of diverted prescription

drugs. Again, the Board didn’t like to see that as it moved toward punishing Dr. Ibsen

and thus simply struck the Finding of Fact 184.

For the same reason the Board simply rejected out of hand Finding of Fact 185.

Certainly there was evidence that the Board’s counsel attempted to present to the Hearing

Officer matters concerning the Board lawyer’s view of things, but the Hearing Examiner

50. PETITIONER’S BRIEF
rejected any argument that Dr. Ibsen’s personal conduct or his mental and emotional

abilities prevented him from handling his practice and dealing with his patients. In the

view of the Hearing Examiner, the Department failed to prove that Dr. Ibsen suffered

from any malady that might affect his ability to safely practice medicine. That is

certainly a finding that can be made by the Hearing Examiner and was made by the

Hearing Examiner. And there is no basis for setting that aside.

The same reasoning applies to the Board’s total rejection of Finding of Fact 186.

The Hearing Examiner found that the Department failed to prove that there was any

violation of standard of care as it related to monitoring of patients or the prescription of

narcotic pain medications. The Hearing Examiner found that the Department never

defined what over prescribing was or presented evidence to show that any prescription

was out of range for a particular drug. There is no basis at all for rejecting this Finding of

Fact, except that it didn’t square with what the Board wanted to do and has now

attempted to do to Dr. Ibsen.

It is somewhat difficult to address the changes that the Board made to the

Conclusions of Law because they are to some degree a follow-up to the Board’s mistakes

relative to changes they put in place as concerns the Findings of Fact by the Hearing

Examiner. For instance, they rejected the Hearing Examiners Conclusions of Law in

their entirety and simply reversed them. The Hearing Examiner concluded that, “the

Department did not meet with its burden of proof with respect to the issue of whether Dr.

Ibsen was over prescribing pain medications or whether he failed to meet the standard of

51. PETITIONER’S BRIEF
care with respect to patient monitoring.” They simply discarded that and stated that the

Department did meet its burden of proof in these respects.

In rejecting Conclusion of Law number 7, the Board showed its ingenuity by

taking what its own witness, Dr. Kneeland discussed, that is the pendulum of how patient

care standards have changed over time going one direction and then another by stating

that the Hearing Officer was confused by this analogy. The fact of the matter was the

standard of care relative to the care of pain patients has changed and has gone back and

forth over the period of time such that, for example, with regard to pain contracts, the

testimony showed that some doctors used them, some doctors have not yet come to use

them. Ms. Blank’s testimony that St. Peter’s Hospital had only at the time of the

December 2014 hearing decided to require pain contracts shows the evolving or changing

nature of the rules. That didn’t fit with what the Board wanted to do, that is, take action

against Dr. Ibsen, and so they threw out Conclusion of Law number 7 in its entirety.

Contrary to what the Board states at the top of page 67 of its Final Order that “the

Hearing Officer relied only on his personal understanding and perspective of the standard

of care”, the Hearing Officer relied upon the testimony and the evidence presented. The

conclusions that the Hearing Officer arrived at regarding standards of care was that they

were not certain. The standard of care was not something certain in black and white and

the Board refuses to accept that.

The Conclusion of Law number 8 was affirmed but it is indeed inconsistent with

other findings of the Hearing Examiner concerning Dr. Ibsen’s record keeping, namely

52. PETITIONER’S BRIEF
that Dr. Anderson said the record keeping was acceptable and that Dr. Kneeland was

found not to be able to opine on the issue.

The Board then begins at page 69 of its decision to recast the Findings of Fact to

fit its view of the facts. Interesting that the Board in its recast final Findings of Fact,

number 5, states that “the standard of care usually shifts over time but can sometimes

shift immediately.” In Finding of Fact 65 at page 80, the Board states that it is a breach

of the standard of care to offer early refills without documentation of the rationale for the

early refill and cites Tr. 426. Actually, that passage refers to early refills habitually or if

the early refills are done with any regularity. There is no testimony in this proceeding

that Dr. Ibsen did early refills habitually or with regularity without documentation of the

reasons. Further, Finding of Fact 65 references that Dr. Ibsen breached record keeping

standard of care by failing to document his reasons for early refills and cites Tr. 437 in

that regard. There is no reference to early refills in that transcript citation, however. This

finding is clearly erroneous.

The Hearing Examiner in Finding of Fact 160 indicated that Dr. Ibsen talked to

his patient about the issue of early refills, which seldomly occurred but he didn’t

adequately document the same. He felt there were legitimate reasons for the refills.

In Conclusions of Law number 9 and 10, the Board concluded that Dr. Anderson

was not qualified to testify because he had not worked in the field of chronic pain care for

more than 30 years prior to the time of his testimony and he spent the bulk of his career

practicing neurology. That is plainly false and contrary to the evidence. This sounds to

be a direct quote from Dr. Guggenheim during the deliberation processes. Conclusion of

53. PETITIONER’S BRIEF
Law 10 also found that Dr. Anderson was not qualified to challenge Dr. Kneeland’s

expert medical testimony regarding standard of care. The fact of the matter remains that

though Dr. Anderson testified he retired from his busy practice in December 2012,

certainly his experiences made him qualified under even the medical malpractice

disqualification statute (Mont. Code Ann. § 27-2-601). Dr. Anderson testified that he

came to Dr. Ibsen’s office and reviewed everything. Dr. Anderson was a board certified

neurologist (Tr. 734). He had done more than 20 years of neurology and was part of a

chronic pain management team before moving to Helena in 1991 (Tr. 735). When he

arrived in Helena he stopped doing primary pain management but he would act in a

consultative role doing pain management. In other words, he would help other doctors

with pain difficulties that they were having with their patients. He would see patients and

their records, take a history, conduct a physical examination, and then provide or

recommend care (Tr. 737). Interestingly, Dr. Anderson was asked whether because Dr.

Ibsen was board certified in family medicine and emergency medicine and he was a

board certified neurologist and Dr. Kneeland was board certified in anesthesiology,

whether it made both Dr. Anderson and Dr. Kneeland less qualified to talk about pain

management issues and his response was:

A. The commonality is pain, yes. Pain is so ubiquitous that it hits all
specialties. You really can’t avoid it. Some doctors try, they say I don’t
want to hear it. If you hurt, see someone else and see your primary care
doctor or whatever.

...

Q. So you’ve cared for patients with chronic pain, have been involved in the
management of their chronic pain for 30-something years now?

54. PETITIONER’S BRIEF
A. Yes.

Tr. 759.

After giving all of those answers and others the Hearing Examiner at Tr. 760

determined that he was qualified to testify as an expert witness in this case. He treated

pain patients concurrently with other doctors. And see, Tr. 749-750 and 758-759.

Remember that Dr. Anderson testified that he did not consider the records to be

inadequate nor the care in any respect to the inadequate. The only way to avoid those

conclusions by Dr. Anderson was for the Board to find that Dr. Anderson was not

competent to testify as an expert and the bases upon which they disqualified him here

don’t stand up. Contrary to Conclusion of Law number 9 which says that Dr. Anderson

has not worked in the field of chronic pain for more than 30 years prior to his testimony,

he testified to the contrary. He testified that he has worked in the field of chronic pain

care for more than 30 years. For a large portion of the time he worked directly with

patients and their pain management and when he came to Helena he worked in

conjunction with other doctors to manage patients’ pain care and provide pain care

management. He helped other doctors with that issue. There is no basis in the world for

his testimony to have been disqualified.

Conclusion of Law number 12 seems to suggest that Ibsen should have from day

one tried other treatment modalities than pain medications. Of course, that is easier said

than done. When a patient shows up to his office and is in pain, they oftentimes need and

require pain medications. In nearly every instance the 9 patients came to Dr. Ibsen

55. PETITIONER’S BRIEF
having treated with and received pain medications from prior providers. It only makes

sense to continue the pain medications while their entire case and needs were assessed.

The fact that Dr. Ibsen would regularly recommend other alternative pain treatment

modalities or interventions was documented throughout the patients’ records. Their

responses were oftentimes communicated directly to him and in some instance they were

recorded.

The Board is simply wrong to hold as a standard of care that there be a written

controlled substance agreement in its Conclusion of Law 17 when narcotics were

prescribed for a long period of time. First of all, there is no definition as to what

constitutes a long period of time. Secondly, Dr. Ibsen testified that none of these patients

presented for pain treatment for a long period of time. They typically presented with

acute pain symptoms. The same is true with Conclusion of Law number 19 wherein the

Board for the first time established a standard of care of requiring regular use of

urinalysis. There is no testimony confirming that that is part and parcel of standard of

care. Furthermore, Dr. Ibsen used drug screening and urinalysis. (7 UAs for patient 5; Ex

L-1.)

The Board in Conclusions of Law 23, 24 and 25 makes the statement that the

Board met its burden of proof in certain areas but it doesn’t indicate how they met the

burden of proof, what the burden of proof was, or how it was that Dr. Ibsen failed in

various respects. For example, Conclusion of Law number 23 states that the Department

met its burden of proof with respect to whether Dr. Ibsen was overprescribing pain

medication. It doesn’t state that he was overprescribing pain medication. It doesn’t state

56. PETITIONER’S BRIEF
what the burden of proof was or anything else. That Conclusion of Law is simply

incomplete. The same is true with Conclusions of Law 24 and 25. It is also contrary to

Dr. Anderson’s testimony, Dr. Kneeland’s testimony and Ms. Blank’s testimony.

In Conclusion of Law 26, the Board concludes that there was excessive quantities

of narcotics prescribed but the particular patients are not identified. The amount which

constitutes excess quantities is not identified. This Conclusion of Law is incomplete and

flatly contrary to the undisputed testimony.

The Conclusion of Law number 21 and 22 are likewise incomplete. There is just

a blanket statement that he failed in his record keeping to record adequate histories,

physical examinations, etc. and document physical examinations. But there is no

specificity. Which patients were these? Which records were incomplete? Which records

were not incomplete? It’s just an indefensible vague statement in a conclusory sort of

way to enable the Board to do what it wished, punishment-wise, sanction-wise, with Dr.

Ibsen.

Based upon all of this, the Board did what it had in mind from the very beginning.

It indefinitely suspended Dr. Ibsen from practice as a medical doctor in the State of

Montana until he did certain things. Primarily, he was required to take a course on

medical record keeping, then be supervised and monitored.

I have been representing doctors in one capacity or another for 40 years. I have

never seen a doctor suspended over the issue of record keeping particularly when the

experts testify the record keeping was acceptable and when it is apparent that the Board

did not look at the records. Every doctor I know could do better in their record keeping.

57. PETITIONER’S BRIEF
Every lawyer I know could do better in their record keeping. This is a discriminate,

arbitrary and capricious sentence meted out without justification. Certainly record

keeping needs to meet certain levels but what level that might be is vague. In what

respects the record keeping was inadequate is vague. Whether it was in regard to every

patient or one patient or two patients is vague. We are left to wonder in what respects and

where was the record keeping deficient.

Punishment cannot be done without letting the punished know why they are being

punished. The suspension of a doctor’s medical license is serious business. In this case

the Final Order of the Board should be rejected. This case should be dismissed.

DATED this _____ day of July, 2016.

DOUBEK, PYFER & FOX, LLP

By_____________________________
John C. Doubek
Attorney for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on the _____ day of July, 2016, I served a true and correct

copy of the foregoing upon opposing counsel by inserting a copy of the same in a

stamped envelope and depositing it in the United States Post Office at Helena, Montana,

addressed as follows:

Graden Hahn, Esq.
Special Assistant Attorney General

58. PETITIONER’S BRIEF
Office of Legal Services
P.O. Box 200514
Helena, MT 59620-0514

_______________________________

59. PETITIONER’S BRIEF